Water moves over the earth according to the hydrologic cycle and can be best understood as an integrated system. However, the law often artificially segregates the hydrologic cycle into its component parts for regulatory purposes. The Clean Water Act is an example of a statute which separates water quality—which is regulated jointly by the federal and state governments—from water quantity, which is regulated by the states. This distinction is especially important in the Western United States, which is experiencing enormous challenges in satisfying the water needs of a growing population during a historic drought complicated by climate change. The Supreme Court’s recent decision in Sackett v. EPA, which further restricted the scope of waters covered by the Clean Water Act, will make state management and allocation of water quantities more complex, despite the Clean Water Act’s clear policy of preserving water quantity regulation for the states.
Most legal scholarship addressing the Supreme Court’s Clean Water Act jurisprudence analyzes the effect of those decisions on protecting water quality. This article takes a unique perspective on how the recent Sackett decision will impact water quantities in the arid West. This is because the Supreme Court in Sackett categorically removed Clean Water Act protections for irregularly flowing ephemeral and intermittent streams. As a consequence, these streams will be exposed to development pressures without being subject to the U.S. Army Corps of Engineers’ section 404 permitting program (regulating the discharge of dredge or fill material into waterways) or any other federal oversight. While the value of ephemeral and intermittent streams has been discounted by the Supreme Court, they provide much of the flow of water to both groundwater aquifers and to perennial streams and rivers. Strangling these smaller streams will choke off water to larger downstream rivers and aquifers, which function as the source for most water rights claims in the arid West.
This Article will discuss how the Sackett decision has made these water resources vulnerable to exploitation and, in an ironic turn of events, has transformed a decision aimed at restoring state authority to manage water resources to one that may significantly impair the states’ right to allocate water quantity to their citizens.
